DATE OF FILING : 15.10.2008.
BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI Dated this the 30th day of January, 2010
Present: SRI.LAIJU RAMAKRISHNAN PRESIDENT SMT.SHEELA JACOB MEMBER SMT.BINDU SOMAN MEMBER
C.C No.171/2008 Between Complainant : Abdul Majeed Sofi, Lords Shopping Complex, Proprietor of Chola Arts Emporium, Thekkady Junction, Kumily, Idukki Distric. Represented by his power of attorney Farooque Ahammed Sofi, S/o Haji Gulam Ahammed Sofi, Chola Arts Emporium, Thekkady Junction, Kumily, Idukki District. (By Adv: Prazeeda K. Pillai) And Opposite Party : Satheesh M. John, S/o John, Proprietor – Surya Constructions, Kumily P.O., Idukki District. (By Adv: Joseph Pathalil) O R D E R
SRI. LAIJU RAMAKRISHNAN (PRESIDENT)
On 8.3.2007, the opposite party entered into a contract with the complainant for the construction of a residential building in an extent of 25 cents of land owned by him in Kumily village, as per the plan and estimate prepared by Mr.Jacob Chandy, Architect and interior designer, Kottayam. The opposite party had contracted to complete the building on or before 30.11.2007 at the mutually agreed amount of Rs.44,50,000/-. The complainant has paid an amount of Rs.43,40,000/- to the opposite party, out of the amount agreed in several instalments. The receipt of the same had been acknowledged by the opposite party in writing. The balance amount has to be paid to the opposite party upon completion of the building is only Rs.1,10,000/-. But after receiving the amount as stated above, to the utter dismay of the complainant, the opposite party stopped the construction of the building, without any justifiable causes or reasons. The roofs of the building being constructed were not thatched, windows and front door were not fixed, bathroom fittings and light fittings were not done, tiles were not put in car porch. To carry out the remaining portion of the work, no building materials are left there. Demands for completion of the constructions were ignored by the opposite party for reasons known to him alone. On 23.5.2008, the complainant caused to send a lawyer's notice to the opposite party, demanding the completion of the construction, to commence the work within 7 days of the receipt of the notice and informing that failing compliance the contract would be rescinded at the option of the complainant. But he has replied the notice with unsustainable claims, which are contrary to the terms and conditions of the contract. The opposite party demanded a huge sum of money, as additional expenditures which are unknown to the complainant. After issuing the lawyer's notice the complainant called for the estimate of the balance of works that has to be done. Since the cost of materials have escalated, if another contractor is appointed he will not do the work at the above agreed rate. The estimate of the balance work is Rs.13,50,000/-. Since the balance amount of Rs.1,10,000/- as per the contract was not given to the opposite party, the complainant requires Rs.12,40,000/- to complete the work which the opposite party is liable to compensate the complainant for the defect in service. The complainant has already started the completion works after the expiry of the notice period. 2. The opposite party filed a written version. The estimated cost in the agreement was prepared in the preliminary architectural design based on the normal construction procedures. And that was accepted by the opposite party who have during the course of construction of structural design for the the building and foundation details were also changed for the complainant. Even so many changes were made during the course of the construction as per the direction of the complainant, conveyed through his brother Farooq Ahammad Sofi as well as the supervisor of the complainant. All the changes made by the complainant was implemented as per the directions of the architect. These changes suggested by them were effected by the opposite party which was resulted in the escalation of the construction cost exorbitantly. As per the initial estimate the cost of the ground floor was Rs.18,54,942.52/- where the actual cost is Rs.27,29,865/-. Similarly the estimate of first floor was Rs.15,35,480/- and the actual cost is Rs.16,35,355/-. Likewise the estimate cost of Roof Truss work was 4,26,990.50/- where as the actual cost is Rs.6,36,000/-. An excess amount of Rs.70,000/- was expended for water supply and sanitary arrangement. More over, an amount of Rs.50,000/- was spent in excess for water tank. An amount of Rs.60,000/- was additionally expended for electrification works. The actual cost of construction at present is Rs.57,02,270/- where initial estimated total cost was only Rs.44,50,000/- out which only Rs.43,40,000/- has received. This was brought to the notice of the complainant and his brother. Complainant is bound to pay the balance amount of Rs.13,62,270/- for the work done so far. Demand for this amount raised by the opposite party several times and complainant tried to evade the payment conveniently saying flimsy excuses. Complainant has clearly violated the 14th clause of the agreement dated 8.3.2007. The construction site was totally under the possession and control of the opposite party being the contractor. But to evade the balance payment complainant filed a suit before Peerumade Munsiff's Court on 21.4.2008, stating fake allegations but failed to obtain an order of injunction against the opposite party. The prayer in the petition was to restrain the opposite party from entering upon the site and doing construction work. To a great surprise complainant sent lawyer's notice on 23.4.2008 stating that as the work was not completed and demanded to complete the work within 7 days and on failure to complete construction he is entitled for damages etc. and the agreement dated 8.3.2007 would be cancelled. Again on 23.5.08 another lawyer's notice was sent to opposite party directing to start construction forthwith and on failure he will treat that the original agreement dated 8.3.2007 stands rescinded then. It would be seen that all these was done by the complainant exclusively to avoid the payment of the exorbitant balance amount due to the opposite party by the complainant. As the Hon'ble Munsiff's Court could not find any merit in this case of the complainant and was not inclined to give a temporary order in favour of complainant, he cunningly withdraw the above suit and filed a fresh complaint before this Forum. Changes in the plan and estimate was made in the satisfaction of the complainant. Inability for continuing the construction was only because of non payment of balance amount for the work done already, for which he only could be held liable. The opposite party would have completed the construction of the building if the payment was disbursed apart from the amount for balance construction. So the petition is filed without any bonafides and may be dismissed.
3. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to? 4. The evidence consists of the oral testimony of PW1 and PW2 and Exts.P1 to P7 marked on the side of the complainant and the oral testimony of DW1 and DW2 Exts.R1 to R12 marked on the side of the opposite parties. The Commission report was marked as Ext.C1 (series).
5. The POINT :- The petition is filed for getting compensation against opposite party because the opposite party evade from the contract to construct the residential building of the complainant within the prescribed time. The opposite party has received 90% of the amount as per the contract between the complainant and opposite party but they did not complete the work as per the contract. The complainant's power of attorney holder is examined as PW1. An agreement was created between the complainant and opposite party on 8.3.2007 for the construction of residential building in an extend of 25 cents of land owned by the complainant in Kumily Village as per the plan and estimate prepared by Mr. Jacob Chandy, Architect and interior designer at Kottayam. The opposite party had contracted to complete the building on or before 30.11.2007 at the mutual agreed amount of Rs.44,50,000/-. The agreement is marked as Ext.P1. The opposite party had received an amount of Rs.43,40,000/- from PW1, but the work was not completed by him. So a lawyer's notice was issued by the complainant on 23.5.2008 for directing the opposite party to start the construction within 7 days. It is marked as Ext.P2. The balance amount has to be paid to the opposite party upon completion of the building, is Rs.1,10,000/-. The opposite party stopped the construction because of non-justifiable reason. The roofs of the building was being constructed were not thatched, windows and front door were not fixed, bathroom fittings and light fittings were not done, tiles were not floored in car porch and lot of other works remains incompleted. To carry out the remaining portion of the work, no building materials were left. The notice was replied by the opposite party with unsustainable claims which is marked as Ext.P3. The opposite party demanded a huge amount of money as additional expenditure which are unknown to the complainant. After issuing the lawyer's notice, the complainant called for estimate of the balance of works that has to be done. The estimate of balance work was Rs.13,50,000/-. Since the balance amount of Rs.1,10,000/- as per the contract, was not given to the opposite party, the complainant requires Rs.12,40,000/- to completing the work which the opposite party is liable to compensate the complainant. The complainant has already started the completion works after the expiry of the notice period. In the meantime the complainant had taken another building on lease for residing with his family by paying Rs.10,000/- per month as rent. Federal Bank Ltd., Kumily had issued a notice to the complainant to complete the construction work within time. A certificate stating the details of estimate supplied by the architect is marked as Ext.P5. Ext.P6 is the notice issued from the Federal Bank Ltd., Kumily branch.
As per the cross examination of the learned counsel for opposite party, PW1 deposed that a suit was filed by the complainant in Munsiff's Court, Peerumade as OS No.108/2008 against the opposite party. The case was filed to restrain the opposite party from entering into the disputed premises in this case. Injunction petition was not allowed and the suit was withdrawn by the complainant because it is a consumer dispute and the matter is explained in the withdrawal petition.
The suit was filed on 21.4.2008 and after 2 days the complainant sent a notice demanding to complete the work within 7 days. Another notice was issued on 23.5.2008 demanding to start the work forthwith . The date of withdrawal of suit was 27.6.2008. The changes were made in Ext.P1 plan by the complainant only after the opposite party left the work. PW1 deposed that “no documents produced here to prove the actual expenditure of the construction done by me after opposite party left the place”. The cost of the iron was Rs.28/Kg at the time of contract. When the work started it changed to Rs.50-60. PW2 is the architect who designed the building. PW2 deposed that Ext.P1 and Ext.P5 were prepared by PW2. Ext.P5 is the assessment of the work done and the estimate rate. As per Ext.P5, an initial plan filed by PW2 and it is written that the agreement between the complainant and the opposite party is based on the estimate prepared by PW2 initially. PW2 noticed structural changes in Ext.P1 at the time of preparing Ext.P5. PW2 is an experienced architect for 22 years. Ext.R1 is the plan prepared by the PW2 initially. The estimate prepared that in Ext.P1 is according to the Ext.R1 plan. The revised plan is marked as Ext.R2 which is also prepared by PW2. There is no change in the plan but there are structural changes in Ext.R1 and Ext.R2. The rate of the construction would not be increased if the construction was done as per the 2nd plan and as per the estimate prepared obviously. But the amount will increase in real sense because of the rate of construction is increased than earlier. The quantity of work so increased than Ext.R1 to Ext.R2. As per Ext.P1 the RCC (Rein faced Cement Concrete) will come about 100 m3 as per revised plan but RCC will come about 215m3. In this change itself there will be a difference of Rs.7,00,000/-. A plinth beam has constructed in the foundation portion. Ext.R3 is the certificate issued by PW2 stating that there are changes in quantity from the initial estimate. After preparing Ext.P1, the cost of the materials were increased.
DW1 who is a PWD Engineer, who is the commissioner, prepared Ext.C1, the commission report. The commissioner inspected the disputed building on 2.7.2009. The commission report is marked as Ext.C1. DW1 deposed that there is difference in Ext.R1 and Ext.R2. As per Ext.R2 there was difference in the cost of the materials. The difference in RCC in Ext.P1 estimate and commission report is that, in the original estimate, the RCC was 100m3 but in the commission report it is 176m3. Additional pillars were erected. As per Ext.R2 plan there are 29 pillars are included. So the cost of completion is increased very much. As per Ext.P5 report the construction of building has completed upto 95%. The iron truss works were fully completed as per Ext.P5. Concrete items were also completed as per Ext.P5. Without completing the concrete RCC work, the plastering, putty and painting can not be done. Foundation mat was changed from the initial Ext.R1 plan. Additional pillars were erected from the foundation mat. Ext.C1 report was prepared as per PWD rate in the Ext.P1 agreement period. The work was started on 2007, but the rate was increased 20% in 2008. In Ext.R2 plan there are 29 pillars and in Ext.R1 plan there are only 3 pillars. The commissioner deposed that all construction were done in item basis after Ext.P5 report. It needed the help of an electrician and plumber to calculate the cost of the consolidated plumbing and wiring. The total construction expenses as per PWD rate in 2007 is Rs.52,20,181/-. The opposite party is examined as DW2. Copy of the complaint filed by the complainant in Munsiff's Court is marked as Ext.R4 and the copy of interim application filed before the Munsiff's Court is marked as Ext.R5. Ext.R6 is the notice issued by the complainant through a lawyer on the date 23.4.2008, at the time when the case was going on. The notice was issued after 2 days from filing of the case. It was demanded to complete the work within 7 days in Ext.R6. Again a notice was received on 23.5.2008 which is marked as Ext.R7, in which it is written that the work should be started within 7 days. As per the agreement for construction of work it was contracted for Rs.44,50,000/-. DW2 received Rs.43,40,000/- from the opposite party. Only Rs.1,10,000/- is entitled from the complainant. 95% of the work were done by DW2. The work of the roof was incomplete, some portion of the painting work were also left, some portion of the front door were also left. One window was not completed. The tiles work of the exterior side of the car porch was not finished. The stair case from the 1st floor to the terrus was incomplete, these were the work left by PW2 at the time of stopping the work. Wall putty work finished. Door, window polishing work were done by PW2. The work was not stopped up to the receipt of the notice from the Munsiff's Court. About 25 pillars were constructed in Ext.R2 plan than in the Ext.R1 plan. The beams for the pillars were also constructed. Semi vertified tiles were used, but as per the initial plan and estimate, the ordinary tiles were written. The complainant Mr. A.M. Sofi went to Kashmir after signing the agreement and he came back only after 7 months. The changes were made in the construction at that time and the brother of the complainant told that the changes in the agreement can be done after when A.M.Sofi arrives from Kashmir. DW2 informed to the brother Sofi that the changes should be entered in the agreement also. It was informed to the supervisor also. The opposite party is entitled to get Rs.13 lakhs from the complainant. But no legal action was taken against the complainant because he was expecting that the complainant will give the amount after the arrival of A.M.Sofi. Ext.P7 is the commission report filed by the advocate commissioner before the Munsiff's Court. Ext.R9 is the summons received from the Munsiff's Court, Peerumade, in OS No.108/08 by the opposite party. And the notice issued by the Munsiff's Court is marked as Ext.R10.
As per Ext.C1 commission report, as per DW1, it is stated that there are changes in original construction at site from the agreed initial architectural plan. Some rooms are found re-arranged at site such as, sit out in left rear corner is omitted, size of toilets were changed, size of work area enlarged, 27 numbers of concrete pillars are found introduced, instead of structural glazing work and grill work 'Anjilly' wood windows are found introduced at site. In pillars, brick work is found done on front side, Two numbers of concrete elevated water tanks are constructed above main roof which is not covered in agreed architectural plan. Interior work such as cup board work is not as certained as both the parties were agreed that they were done by owner itself. Also disputes are found existing regarding shutter works for some of doors and windows, iron hand rails, completed by both the parties. Similarly due to lack of detailed valuation of electrification work from concerned expert official, lump some provision is considered for this too. As the building iron stair case, tile flooring in stair case, working slab in kitchen and wash area along with its top granite slab work, part of roof truss and purlin work along with Mangalore tile roofing, iron stair case, iron handrails, bath room sanitary fittings, electrical fittings and front door shutter, as the construction is found started during 2007, rate adopted for various item of work in this valuation is based on the PWD schedule of rate applicable in 2007 with standard 10% contractor profit, even though there was rate revision by PWD during April, 2008 for about 20% hike as during the period 2007-2008 there was marginal rise in labour and material cost to above extent. The total cost of construction as per valuation comes to Rs.52,20,181/-. PW2 is the engineer who designed Ext.R1 and Ext.R2 plan deposed that he issued a clarification certificate which is marked as Ext.R3, and it is written that “during the course of construction the structural design for the building was done the foundation details completely changed. Hence there is very little similarity in the quantities of materials in the initial detailed estimate, more over the cost of materials and labour alarmingly went up that which was not applied to the detailed estimate”. So the changes in the construction of building from Ext.R1 and Ext.R2 plan makes higher changes in the Ext.P1 agreement. DW1 commissioner also deposed that 95% of the works were completed as per Ext.P1 report. So the opposite party received an amount Rs.43,40,000/- and Ext.P5 shows that 90% of construction was done at the time in which it is entitled by the opposite party at that time. DW2 who is the opposite party deposed that the work left with him before commission were, stair case work from the 1st floor to the terrus and roof work was not completed. Some painting work were left, some portion of the front door and one window was also to be completed. As per the commission report filed by the advocate commissioner before the Munsiff's Court which is marked as Ext.P7 in which it is also written that the details of construction of the work made in the schedule property, it is some portion of the roof in the 1st floor were incomplete, sunshade portion was incomplete, balcony was incomplete, one window was incomplete and car porch was incomplete. So we think that the portion left incomplete by DW2 and are described in Ext.P7 commission report, also from the deposition of PW2 are quite similar. DW1 commissioner also deposed that 90% of the work were done at the time of preparing Ext.P5 report. So the opposite party received only an amount of Rs.43,40,000/- and is entitled for only Rs.1,10,000/- at the time of stopping the work. 95% of work were completed at that time. It is admitted by PW1 that higher changes were made in the previous plan, but it is made only after the opposite party left the place. But as per PW2, the changes were made as per the direction of the complainant and that matter was not recorded in Ext.P1 agreement because the original plan wassigned by the brother of the PW1. PW2 was also deposed that there are changes made in the construction of the building and amount for the construction of the building was increased very high because of the construction of the pillars in Ext.R2 plan which is different from Ext.R1 previous plan. So we think that there are several changes made in the construction of building which made much increase in the cost of the building. But there is no evidence produced by the complainant to show that the additional construction work done by the complainant is after the opposite party left the place. DW1 commissioner stated that 95% of the building were completed at the time of preparing Ext.P5. Ext. P5 is prepared only at the time when the opposite party left the place. As per the opposite party, he stopped the work of building because the complainant did not disburse the balance amount to the opposite party while the cost of construction increased as per the revised plan. So there is no evidence to show that the construction as per the revised plan was done by the complainant itself and amount paid by the complainant itself. Hence there is no deficiency in service of the opposite party has proved by the complainant. Hence the petition dismissed. No cost is ordered against the complainant. Pronounced in the Open Forum on this the 30th day of January, 2010.
Sd/- SRI. LAIJU RAMAKRISHNAN (PRESIDENT)
Sd/- SMT. SHEELA JACOB (MEMBER)
Sd/- SMT. BINDU SOMAN (MEMBER)
APPENDIX
Depositions : On the side of the Complainant : PW1 - Abdul Majeed Sofi represented by Farooq Sofi (Power of Attorney) PW2 - Jacob Chandy. On the side of the Opposite party : DW1 - Rajesh K.N. DW2 - Satheesh M. John. Exhibits : On the side of the Complainant : Ext.P1 - Agreement dated 8.3.2007, between the complainant and the opposite party. Ext.P2 - Copy of the lawyer's notice dated 23.5.2008, issued by the complainant to the opposite party. Ext.P3 - Copy of the lawyer's notice dated 2.6.2008, which is the reply to the Ext.P2 notice. Ext.P4 - Power of Attorney. Ext.P5 - Certificate dated 18.4.2008, with estimate issued by the architect. Ext.P6 - Notice No.KML/ODCC/28/ /2008 dated 15.5.2008, issued by the Federal Bank Ltd., Kumily branch. Ext.P7 - The Commission report filed by the advocate commissioner before the Court of the District Judge, Thodupuzha. Ext.C1 (series) - The Commission report dated 24.8.2009. On the side of the Opposite party : Ext.R1 - The old plan prepared by the architect for the proposed resident. Ext.R2 - The revised plan prepared by the architect for the proposed resident. Ext.R3 - The clarification certificate dated 8.5.2008, issued by the architect. Ext.R4 - Copy of the complaint filed by the complainant before the Hon'ble Munsiff's Court, Peerumade. Ext.R5 - Copy of the interim application filed by the complainant before Hon'ble Munsiff's Court, Peerumade. Ext.R6 - Copy of the lawyer's notice issued by the complainant dated 23.4.2008. Ext.R7 - Copy of the lawyer's notice issued by the complainant dated 23.5.2008. Ext.R8 - Copy of the lawyer's notice issued by the opposite party dated 2.6.2008, which is the reply to Ext.R7 notice. Ext.R9 - The summons issued by the Munsiff's Court, Peerumade, in OS No.108/08 to the opposite party. Ext.R10 - Notice issued by the Munsiff's Court dated 25.4.2008, to the opposite party. Ext.R11 - Copy of the affidavit filed by the opposite party before the Hon'ble Munsiff's Court, Peerumade. Ext.R12 - Copy of the affidavit filed by the complainant before the Hon'ble Munsiff's Court, Peerumade.
| [HONORABLE Sheela Jacob] Member[HONORABLE Laiju Ramakrishnan] PRESIDENT[HONORABLE Bindu Soman] Member | |